Court of Appeal for Ontario

Date: 2019-12-17 Docket: C65285 Judges: Brown, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Lance Richardson Appellant

Counsel

For the Appellant: Jeffrey Carolin and Nicolas Rouleau

For the Respondent: Linda Shin

Hearing and Release

Heard and released orally: December 16, 2019

On appeal from: The convictions entered on June 21, 2017 by the Honourable Alfred J. O'Marra of the Superior Court of Justice, sitting without a jury, with reasons reported at 2017 ONSC 3779.

Reasons for Decision

[1] The appellant was convicted of two counts of robbery (Criminal Code, s. 343), one count of use of an imitation firearm in the commission of an indictable offence ([s. 85(2)(a)][1]), two counts of assault causing bodily harm (s. 267(b)), and one count of threatening to cause death (s. 264.1(1)(a)). He received a global sentence of four years' imprisonment.

[2] The case arose from the violent robberies of a man and a woman who were having a late night picnic behind the Yorkdale Subway Station in Toronto. There were two masked assailants. One carried an imitation firearm, while the other wielded a cleaver-like knife. They assaulted and threatened both victims. The trial judge was satisfied beyond a reasonable doubt that the appellant was one of the assailants.

[3] After he was arrested, the appellant protested his innocence and pointed to voicemail messages exchanged on the Voxer App as proof that: (1) he was not present when the victims were robbed; and (2) that another named individual was the second assailant. A police officer listened to the messages but found them to be unhelpful to her investigation.

[4] The appellant testified at trial and referred to these messages. However, at the time, he no longer had access to his phone and the messages were unavailable. The trial judge rejected the appellant's evidence, finding that it did not raise a reasonable doubt.

[5] The appellant appeals his convictions. He initially raised numerous grounds of appeal. However, he now challenges his conviction solely on the basis of an application to adduce fresh evidence. The core of the fresh evidence is an expert forensic report that authenticates the Voxer messages. Properly authenticated, they establish that the appellant was not one of the assailants.

[6] The Crown consents to the admission of this fresh evidence. She acknowledges that it is "relevant, credible and could reasonably have been expected to affect the result at trial when considered with the other trial evidence." The Crown also concedes that the appellant's convictions amount to a miscarriage of justice and she invites this court to set aside the convictions and enter acquittals.

[7] We accept the Crown's reasonable concessions. Accordingly, we admit the fresh evidence, set aside the convictions, and enter acquittals on all counts.

[8] We thank all counsel for their diligence and professionalism in working together to correct this wrongful conviction.

David Brown J.A. Grant Huscroft J.A. Gary Trotter J.A.

Footnote

[1] In his reasons for judgment, at para. 1, the trial judge notes that there were two counts under s. 85(2)(a) of the Criminal Code. The Indictment contains just one – Count #3.